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McCaskey v. Kirchoff

Decided: June 10, 1959.

JOSEPH MCCASKEY, PLAINTIFF-APPELLANT,
v.
RICHARD W. KIRCHOFF, WILLIAM H. HAU AND ALEXANDER WOJCICKI, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiff appeals from a final judgment of the Superior Court, Law Division, holding valid a petition of nomination filed on behalf of defendants for public office in the Borough of Fairview.

On March 12, 1959 there was filed with the Bergen County Clerk a direct nomination by petition on behalf of the independent candidacy of defendants Richard W. Kirchoff for mayor and William H. Hau and Alexander Wojcicki for councilmen. The petition, consisting of four pages, contained the names and addresses of 110 allegedly legally qualified voters of the borough. The petition was certified to by the three nominees and two others, all of whose names appeared as voters signing the petition. The five took the oath required by R.S. 19:13-7 that the petition was made in good faith and that "the affiants saw all the signatures made thereto, and verily believe that the signers are duly qualified voters."

Within two days after the last date for filing petitions had expired, plaintiff, who was president of the Fairview Regular

Democratic Organization and a citizen and resident of Fairview, filed written objection to the petition with the Bergen County Clerk, pursuant to R.S. 19:13-10. The clerk proceeded to pass upon the validity of the objection in a summary way. N.J.S.A. 19:13-11. At the hearing held by the clerk on March 19, 1959 plaintiff contended that the signatures of Anna Capadonno and Stanley Wyrzykowski were forgeries and that the candidate-affiants knew them to be forgeries. Candidate Hau admitted that Caroline Wyrzykowski had in his presence signed the petition for her husband Stanley, who was not home at the time. Candidate Wojcicki admitted this, too. As for Mrs. Capadonno's signature, however, Hau insisted that her husband had signed the petition first, in his presence, and then Mrs. Capadonno had signed right after him. He told the county clerk that he was willing to swear that this is what happened; "I am a certified public accountant and I can't afford to gamble with anything like that. I would lose my whole reputation and I wouldn't have anything to go on from here on in if I did anything so foolish." Plaintiff produced a handwriting expert who declared that he had compared the signature on the petition with the known signature of Mrs. Capadonno and that they were not written by one and the same person.

The county clerk having determined that the petition of nomination was valid, plaintiff commenced an action by complaint and order to show cause in the Superior Court, Law Division, to have the petition declared invalid, alleging that the five affiants to the petition were not all present at the time each of the voters' signatures was placed on the petition; that every signature was not the true signature of the voter represented thereby; and that the certifying affidavit was not made in good faith, in that the affiants witnessed the making of signatures by persons other than those whose names appeared on the petition, contrary to R.S. 19:13-7.

At that hearing the complaint was amended without objection to include the county clerk as a party defendant. It was then developed that the total number of signatures required for direct nomination by petition was 86, or 2% of the votes cast in the borough for members of the General Assembly at the last preceding general election. See N.J.S.A. 19:13-5. It was stipulated that if defendant Hau testified he would now say that Mrs. Capadonno did not sign her name to the petition, and that Mr. Capadonno signed for her. It was also stipulated that if defendant Wojcicki testified he would say he had witnessed Caroline Wyrzykowski sign the petition and that she also signed her husband's name. There were also presented three affidavits by voters who swore they had signed the petition, but not in the presence of the five affiants who swore to the certification. Plaintiff's argument before the trial judge, as before the county clerk, was that (1) the statute required that all signatures should have been witnessed by the five affiants, and (2) the affidavit of certification was false and fraudulent in that Hau and Wojcicki, two of the candidates named in the petition, witnessed the making of false signatures.

The trial judge stated that he believed that Hau and Wojcicki had sworn to the petition in good faith, and this in spite of the proofs -- the affiants "may have been mistaken." He held, in effect, that the signatures of Mrs. Capadonno and Mr. Wyrzykowski could be disregarded, and that eliminating these signatures, there still remained more than the 2% required by the statute. This was error.

The statutory scheme of direct nomination by petition is designed as an alternative to nomination by primary election. The statute, R.S. 19:13-3 et seq. , as amended, dealing with direct nomination by petition, reveals a legislative scheme and intent to insure the honesty of such nominations. See Sadloch v. Allan , 25 N.J. 118, 129 (1957). Section 19:13-5 requires that the petition be signed by legally qualified voters. Section 19:13-7 requires that

"Before any petition shall be filed as hereinafter provided, at least five of the voters signing the same shall make oath before a duly qualified officer that the petition is made in good faith, that the affiants saw all the signatures made thereto ...


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